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198
1903]
no notice being given to an absent landlord, who may be under no legal or moral responsibility
to see the Act carried out as between himself and the real person in occupation
or tenancy of the premises, I think this bye-law must be held to be unreasonable,
and that being so, the first acquittal must be supported ; that is to say, the first appeal
must be dismissed, and the second appeal must be allowed.
Mr. Justice Wills: I am of the same opinion, and I desire to adopt as part of my
judgment everything which my Lord has said, except with regard to the matter about the
first week in the month of April; but there are a few observations which I should like
to add.
It seems to me that an initial mistake has been made in these bye-laws by trying to
make the same hard and fast rule apply to two perfectly different classes or tenements.
The lodging house proper, which is something in the character of a common lodging
house, may be perfectly well dealt with by a series of regulations which are really quite
inapplicable to the very large class of houses which are brought under the common operation
of these bye-laws under the words " houses occupied by members of more than one
family." Take the West End of London, where we are told the same sort of bye-laws apply.
It is not too much to say that there are very large areas in some of the best parts of London
where I should think it is no exaggeration to say that two-thirds or three-fourths of the
houses are so occupied that they would come under this definition. You cannot pass
through a great number of streets with which I am very familiar without finding half a
dozen doctors' names up on the same door; everybody knows it is the commonest thing in the
world for a medical man who has an extremely good house, very highly rented, to let off
one or two rooms as consulting rooms to somebody else. Well, that immediately brings
this house within the definition of a lodging house and makes all these bye-laws applicable
to it, and when you come to such a case, the application of the bye-law seems to
me to be unreasonable to the last extent. The definition of "landlord" embraces the
person who receives the rack rent of the house.
Just take the very large area, for instance, which is owned by the Duke of Portland.
Probably there are from 500 to 1,000 houses of which he receives the rack rent, and for
every one of which he would be liable as a lodging house within the meaning of these
bye-laws, and to hold that he was liable because everyone of these houses is not
thoroughly cleansed during the first week in April, or is not limewashed from top to
bottom during the first week in April, would impose upon the landlord in such a case as
that an absolutely intolerable burden, and one against which all good common sense and
all instincts of fair-play rebel.
I only give the instance because it is quite within the extreme instances which may
be given. If they are fairly within the scope of the list, as undoubtedly that one would
be, it is only by pointing out the circumstances of the bye-laws, as applied in such cases,
that one sees whether or not, taken as a whole, and as applicable all round, they are
reasonable. If they were confined to the class of houses like the same sort of houses, and
occupied in the same sort of way, as lodging houses, of course there would be very much
more to be said in their favour, but even there I agree with my Lord that unless the
person who is struck at is a person who, from his position and from his relation to the
property, ought to know exactly what his tenants are doing, and in what state they are
keeping the house, and so on—unless he is some person of that sort, it would be quite
unfair to render him liable, without his having had notice of what is tafting place.